SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUMPHRYS
[2018] SASCFC 69
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
25 June 2018
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - AS OF RIGHT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
Appeal brought as of right by the Director of Public Prosecutions (SA) against a subsequent decision of another Judge of this Court dated 27 March 2018 to order the release on licence of the respondent, Mr Humphrys, on terms and conditions determined by the Parole Board pursuant to s 24 of the Criminal Law (Sentencing) Act 1988 (SA). The respondent was detained until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) by an order of a Judge of this Court made on 9 July 2009 after finding that the respondent was capable, but unwilling, to control his sexual instincts.
Held, per Kourakis CJ (Vanstone and Nicholson JJ agreeing), dismissing the appeal:
1. The Judge had regard to all of the risks identified in the material before her (at [4]).
2. The Judge's reasons were adequate having regard to the evidence and the forensic issues which her Honour was asked to resolve (at [6]).
3. The Judge was not bound to consider separately a risk that fell within the generic risk of Mr Humphrys coming into an opportunity to re-offend when that particular risk was neither identified in the Offender Management Program matrix nor the subject matter of submissions or evidence (at [55]).
4. The Judge expressly adverted to the psychiatric opinions on the respondent’s prognosis and accepted their opinions in that there was some, albeit very guarded, prospect for improvement in his willingness to control his sexual instincts if he were to be released (at [5] and [56]-[58]).
Criminal Law (Sentencing) Act 1988 (SA) (repealed) s 23, s 24; Sentencing Act 2017 (SA) ; UN General Assembly, International Covenant on Civil and Political Rights 16 December 1966, United Nations, Treaty Series, vol. 999, p. 17; UN General Assembly, Universal Declaration of Human Rights 10 December 1948, 217 A (III), referred to.
R v Schuster (2016) 125 SASR 388; R v Humphrys [2018] SASC 39, applied.
WORDS AND PHRASES CONSIDERED/DEFINED
"release on licence", "sentences of an indeterminate duration"
R v HUMPHRYS
[2018] SASCFC 69Court of Criminal Appeal: Kourakis CJ, Vanstone and Nicholson JJ
KOURAKIS CJ: The respondent, Mr Colin Humphrys, was detained until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) [1] (the Sentencing Act) by order of a Judge of this Court made on 9 July 2009 after finding that Mr Humphrys was capable, but unwilling, to control his sexual instincts.…
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- R v Humphrys [2018] SASCFC 69
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- [2018] SASCFC 69
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CaseChat Overview and Summary
The central legal issue before the Full Court of the Supreme Court of South Australia was whether the Supreme Court had the power to make a post-custodial order releasing Mr Humphrys on licence, and if so, on what conditions. This involved an examination of the relevant provisions of the Criminal Law Sentencing Act 1988 (SA) and the interpretation of the court's sentencing powers in relation to offenders who pose a significant risk of reoffending.
The Court considered extensive psychiatric evidence regarding Mr Humphrys' risk of reoffending. While acknowledging some apparent improvement in his understanding of his offending and the power dynamics involved, the psychiatrists noted persistent difficulties in his appreciation of the emotional impact of his offences, a tendency to rationalise and minimise his past conduct, and a continued, albeit perhaps not immediate, risk of reoffending. The Court reasoned that the legislation permitted the imposition of a licence with conditions designed to manage such risks, even where the offender had not yet demonstrated complete rehabilitation. The Court's power to impose such conditions was aimed at protecting the public while allowing for the possibility of rehabilitation.
The Full Court ordered that Mr Humphrys be released on licence, subject to conditions including supervision, monitoring, and participation in sex offender treatment programs. The specific conditions were tailored to address the identified risks and the need for ongoing assessment and support.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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